2020 FCA 63, 2020 FCA 63

A-417-18 2020 FCA 63 Attorney General of Canada ( Appellant ) v. Northern Inter-Tribal Health Authority Inc. and Peter Ballantyne Cree Nation Health Services Incorporated ( Respondents ) Indexed as: Canada (Attorney General) v. Northern Inter-Tribal Health Authority Inc. Federal Court of Appeal, Stratas, de Montigny and Laskin JJ.A.—Saskatoon, March 9; Ottawa, March 17, 2020.

Constitutional Law –– Distribution of Powers –– A ppeal from Federal Court decision allowing application for judicial review of decision of federal Superintendent of Financial Institutions who decided that respondents’ pension plans provincially regulated, refused to regulate them any further –– Respondents challenging Superintendent’s decisions through joint judicial review application in Federal Court –– Federal Court quashing decisions of Superintendent who based decisions on Supreme Court’s controlling authority of NIL/TU,O Child and Family Services Society v. B.C.

Government and Service Employees’ Union; holding that Superintendent erring; that pension plans federally regulated –– Treaties Nos. 6, 8 and 10 key to Federal Court’s decision –– Superintendent acting under federal Pension Benefits Standards Act, 1985, s. 4(4) –– Under s. 4(4), having to assess whether respondents’ undertakings within Parliament of Canada’s legislative authority –– While parties agreeing health care provincial matter, respondents submitting that Crown obligated by Treaties to ensure health care provided to Indigenous peoples, which transformed situation, rendering respondents’ undertakings federal –– Whether Superintendent properly interpreting, applying constitutional case law concerning legislative authority of Parliament of Canada; more particularly, whether Treaties at issue affecting constitutional analysis –– Superintendent right to reject respondents’ submission –– Superintendent failing to find substantial Indigenous component in respondents’ functions –– Superintendent focussed on question of “legislative authority” under Pension Benefits Standards Act , 1985, s. 4(4) , identified NIL/TU,O as controlling authority, applied authority, concluded that respondents’ undertakings functionally health care undertakings –– Superintendent correct in concluding that respondents’ undertakings thus under legislative authority of province –– Legislative authority to regulate health care undertakings lying with province — Labour relations of employees in provincial undertakings, including pensions thereof, also presumptively subject to provincial regulation –– Respondents’ undertakings thus under provincial legislative authority –– Federal Court going astray in analysis –– Concentrated on terms of Treaties, Constitution Act, 1982, s. 35 –– Diverting itself from task NIL/TU,O required it to do, committed error of law –– Treaties, rights therein, not changing question Superintendent having to ask himself under Pension Benefits Standards Act, 1985, s. 4(4) as to who having “legislative authority” to regulate respondents’ undertakings –– Answer to question found only in assignment, distribution of exclusive legislative authority in Constitution Act, 1867, ss. 91 –95 –– Federal Court should not have quashed Superintendent’s decisions –– Appeal allowed.

Constitutional Law — Aboriginal and Treaty Rights — Superintendent of Financial Institutions deciding that respondents’ pension plans provincially regulated, refusing to regulate them any further –– Federal Court quashing decisions of Superintendent –– Treaties Nos. 6, 8 and 10 key to Federal Court’s decision –– Superintendent acting under federal Pension Benefits Standards Act, 1985, s. 4(4) –– Under s. 4(4), having to assess whether respondents’ undertakings within Parliament of Canada’s legislative authority — While parties agreeing health care provincial matter, respondents submitting that Crown obligated by Treaties to ensure health care provided to Indigenous peoples, which transformed situation, rendering respondents’ undertakings federal –– Whether Treaties at issue affecting constitutional analysis –– Superintendent correct in concluding that respondents’ undertakings under legislative authority of province –– Federal Court going astray in analysis –– Concentrated on terms of Treaties, Constitution Act, 1982, s. 35 –– Treaties, rights therein, not changing question Superintendent having to ask himself under Pension Benefits Standards Act, 1985, s. 4(4) as to who having “legislative authority” to regulate respondents’ undertakings –– Answer to question found only in assignment, distribution of exclusive legislative authority in Constitution Act, 1867, ss. 91 –95.

Aboriginal Peoples — Superintendent of Financial Institutions deciding that respondents’ pension plans provincially regulated, refusing to regulate them any further –– Federal Court quashing decisions of Superintendent –– Treaties Nos. 6, 8 and 10 key to Federal Court’s decision –– Superintendent acting under federal Pension Benefits Standards Act, 1985, s. 4(4) –– Under s. 4(4), having to assess whether respondents’ undertakings within Parliament of Canada’s legislative authority — While parties agreeing health care provincial matter, respondents submitting that Crown obligated by Treaties to ensure health care provided to Indigenous peoples, which transformed situation, rendering respondents’ undertakings federal –– Superintendent failing to find substantial Indigenous component in respondents’ functions, correct in concluding that respondents’ undertakings under legislative authority of province –– Federal Court going astray in analysis –– Concentrated on terms of Treaties, Constitution Act, 1982, s. 35 –– Treaties, rights therein, not changing question Superintendent having to ask himself under Pension Benefits Standards Act, 1985, s. 4(4) as to who having “legislative authority” to regulate respondents’ undertakings –– Answer to question found only in assignment, distribution of exclusive legislative authority in Constitution Act, 1867, ss. 91 –95.

Pensions — Superintendent of Financial Institutions, acting under federal Pension Benefits Standards Act, 1985, s. 4(4) , deciding that respondents’ pension plans provincially regulated, refusing to regulate them any further –– Under s. 4(4), Superintendent having to assess whether respondents’ undertakings within Parliament of Canada’s legislative authority — While parties agreeing health care provincial matter, respondents submitting that Crown obligated by Treaties to ensure health care provided to Indigenous peoples, which transformed situation, rendering respondents’ undertakings federal –– Superintendent failing to find substantial Indigenous component in respondents’ functions, correct in concluding that respondents’ undertakings under legislative authority of province –– Q uestion Superintendent having to ask himself under Pension Benefits Standards Act, 1985, s. 4(4) : who had “legislative authority” to regulate respondents’ undertakings –– Answer to question found only in assignment, distribution of exclusive legislative authority in Constitution Act, 1867, ss. 91 –95.

This was an appeal from a Federal Court decision allowing an application for judicial review of a decision of the federal Superintendent

of Financial Institutions who decided that the respondents’ pension plans were provincially regulated and refused to regulate them any further. The respondents challenged the Superintendent’s decisions by way of a joint application for judicial review in the Federal Court. The Federal Court quashed the decisions of the Superintendent who based these decisions on the Supreme Court’s controlling authority of NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union . The Federal Court held that the Superintendent erred and that the pension plans were federally regulated.

Key to the Federal Court’s decision were Treaties Nos. 6, 8 and 10, all of which contain promises made by the Crown regarding health care for Indigenous peoples. In this case, the Superintendent was acting under subsection 4(4) of the federal Pension Benefits Standards Act, 1985 . The real dispute here was how the Superintendent went about applying the subsection. In applying the subsection, the Superintendent had to assess whether the respondents’ undertakings were within the legislative authority of the Parliament of Canada. In this particular case, the assessment involved three separate steps.

The first step involved interpreting the constitutional case law concerning the legislative authority of the Parliament of Canada. The parties agreed that the provision of health care is a provincial matter. But the respondents submitted that the Crown is obligated by the Treaties to ensure health care is provided to Indigenous peoples. This, they claimed, transformed the situation, rendering the respondents’ undertakings federal because they fall within the federal legislative authority concerning Indigenous peoples and First Nations pursuant to the Constitution Act, 1867 , subsection 91(24) .

The appellant disagreed citing the Supreme Court’s decision in NIL/TU, O . The main issue was whether the Superintendent properly interpreted and applied the constitutional case law concerning the legislative authority of the Parliament of Canada and, more particularly, whether the Treaties at issue affected the constitutional analysis. Held , the appeal should be allowed. The respondents’ submission was basically the same as that advanced by the unsuccessful parties in NIL/TU, O . The Supreme Court rejected this submission and, in this case, the Superintendent was right to reject it too.

The Superintendent correctly identified NIL/TU, O as the controlling authority. In the case at bar, the respondents submitted that their functions have a distinct and substantial Indigenous component that affected the analysis under the first branch. This was the very submission rejected in NIL/TU, O . Even if the respondents’ view of the law was correct, their submission failed for another reason: the Superintendent failed to find a substantial Indigenous component in the respondents’ functions, a factual assessment that was deferred to.

Here , the Superintendent focused on the question of “legislative authority” under subsection 4(4) of the federal Pension Benefits Standards Act , 1985 , identified NIL/TU, O as the controlling authority, applied that authority, and concluded that the respondents’ undertakings were functionally health care undertakings. The Superintendent based this conclusion on facts that were undisputed and explained it to the respondents in two decision letters.

From there, the Superintendent’s analysis was purely legal and led to the conclusion that the respondents’ undertakings were under the legislative authority of the province. The Superintendent was correct. The legislative authority to regulate health care undertakings lies with the province. And the labour relations of employees in provincial undertakings, including their pensions, are presumptively subject to provincial regulation. On the undisputed facts, the respondents’ undertakings are under the legislative authority of the province. In its analysis, the Federal Court went astray.

Rather than focusing on which level of government has the legislative authority to regulate the respondents’ undertakings and rather than strictly following the controlling authority of NIL/TU,O, the Federal Court concentrated on the terms of the Treaties, the importance and solemnity of the Treaties, and

section 35 of the Constitution Act, 1982 , which recognizes and affirms treaty rights. By doing that, the Federal Court diverted itself from the task NIL/TU, O required it to do and this was an error of law. The Treaties and the rights in them did not change the question that the Superintendent had to answer under subsection 4(4) of the Pension Benefits Standards Act, 1985 : who has the “legislative authority” to regulate these undertakings?

The answer to that question is found only in the assignment and distribution of exclusive legislative authority in sections 91 to 95 of the Constitution Act, 1867 , as interpreted in this context by the Supreme Court in NIL/TU, O . The Treaties obligate the federal government to ensure that health care is provided to the relevant Indigenous peoples. The parties agreed for the purposes of this case that this obligation could be discharged by the federal government providing funding.

But an obligation to provide funding to an undertaking has nothing to do with its function, which is the primary focus of the first branch of the test in NIL/TU, O . In this case, the undertakings’ functions remained the provision of health care, which is provincially regulated, as are the respondents’ pension plans. Since the first branch of the NIL/TU, O test was determinative of the question here, there was no need to consider the second branch of that test. It followed that the Superintendent was correct in deciding that the respondents’ pension plans were provincially regulated.

The Federal Court should not have quashed the Superintendent’s decisions. STATUTES AND REGULATIONS CITED Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91 –95. Constitution Act , 1982 ,

Schedule B, Canada Act 1982 , 1982 , c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35 . Federal Courts Rules , SOR/98-106 , rr. 72, 303. Pension Benefits Standards Act, 1985 , R.S.C., 1985 (2nd Supp.), c. 32, s. 4(4). The Pension Benefits Act, 1992 , S.S. 1992, c. P-6.001 . TREATIES AND OTHER INSTRUMENTS CITED Treaty No. 6 (1876). Treaty No. 8 (1899).

Treaty No. 10 (1906). CASES CITED FOLLOWED: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696. APPLIED: Nishnawbe-Aski Police Service Board v. Public Service Alliance of Canada, 2015 FCA 211, [2016] 2 F.C.R. 351; Canada (Minister ofCitizenship and Immigration) v. Vavilov, 2019 SCC 65, 59 Admin. L.R. (6th) 1. CONSIDERED: Northern Telecom v. Communications Workers, (SCC), [1980] 1 S.C.R. 115, (1979), 98 D.L.R. (3d) 1. REFERRED TO: Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171; Canada (Attorney General) v.

Boogaard, 2015 FCA 150, 474 N.R.121; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 300, [2017] 3 F.C.R. 263; Agraira v. Canada (Public Safety andEmergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Syndicat des agents de sécurité Garda,

Section CPI-CSN v. GardaCanada Security Corporation, 2011 FCA 302, 430 N.R. 84; Telecon Inc. v. International Brotherhood of Electrical Workers, LocalUnion No. 213, 2019 FCA 244, 439 D.L.R. (4th) 558; Innu Matimekush-Lac John Nation Council v. Association of Employees ofNorthern Quebec (CSQ), 2017 FCA 212; Construction Montcalm Inc. v. Min. Wage Com., (SCC), [1979] 1 S.C.R. 754,(1978), 93 D.L.R. (3d) 641; Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (AccessCopyright), 2012 FCA 22, 428 N.R. 297; Bernard v.

Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189; Butterfield v. Canada(Attorney General), 2005 FC 396, 280 F.T.R. 101; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44,[2011] 3 S.C.R. 134; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624, (1997), 151 D.L.R.(4th) 577; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Tessier Ltée v. Quebec (Commission de la santé etde la sécurité du travail), 2012 SCC 23, [2012] 2 S.C.R. 3; Consolidated Fastfrate Inc. v.

Western Canada Council of Teamsters, 2009SCC 53, [2009] 3 S.C.R. 407; Reference Re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, (1991), 83D.L.R. (4th) 297; R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, (1990), 70 D.L.R. (4th) 385; Tsilhqot’in Nation v.British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Siksika Health Services v. Health Sciences Association of Alberta, 2019 ABCA494, 99 Alta. L.R. (6th) 73; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585; Adler v.Ontario, (SCC), [1996] 3 S.C.R. 609, (1996), 140 D.L.R. (4th) 385; Gosselin (Tutor of) v.

Quebec (Attorney General),2005 SCC 15, [2005] 1 S.C.R. 238. APPEAL from a Federal Court decision (2018 FC 1180, [2019] 2 F.C.R. 174) granting an application for judicial review of a decisionof the federal Superintendent of Financial Institutions who decided that the respondents’ pension plans were provincially regulated andrefused to regulate them any further. Appeal allowed. APPEARANCES Marlon Miller and Cailen Brust for appellant. Carl M. Nahachewsky for respondents. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Nahachewsky Law Office, Prince Albert, Saskatchewan, for respondents.

The following are the reasons for judgment rendered in English by [1] Stratas J.A.: The federal Superintendent of Financial Institutions decided that the respondents’ pension plans were provinciallyregulated. Thus, he refused to regulate them any further. The Superintendent based these decisions on the Supreme Court’s controllingauthority of NIL/TU,O Child and Family Services Society v. B.C.

Government and Service Employees’ Union, 2010 SCC 45, [2010] 2S.C.R. 696 (NIL/TU, O). [2] The respondents challenged the Superintendent’s decisions by way of a joint application for judicial review in the Federal Court. [3] The Federal Court (per Mandamin J.) held that the Superintendent erred. In the Federal Court’s view, the pension plans werefederally regulated. Key to the Federal Court’s decision were Treaties Nos. 6, 8 and 10, all of which contain promises made by theCrown regarding health care for Indigenous peoples.

Thus, the Federal Court granted the application for judicial review and quashed theSuperintendent’s decisions: 2018 FC 1180, [2019] 2 F.C.R. 174, 47 Admin. L.R. (6th) 165. The Attorney General now appeals. [4] I would allow the appeal. The function of the works or undertakings must be the focus of analysis: NIL/TU,O, at paragraphs 3,and 13–18. Here, the function of the respondents’ undertakings is to provide health care, a provincially regulated matter. It follows thatthe pension rights and obligations concerning those undertakings are also provincially regulated: NIL/TU,O, at paragraph 11.

While theTreaties obligate the Crown to provide health care, they have no bearing on the function of the health care undertakings themselves,which remain provincially regulated. The legislative framework

[ 5 ] Before the NIL/TU,O decision and before the Superintendent’s decisions, the federal Pension Benefits Standards Act , 1985 , R.S.C., 1985 (2nd Supp.), c. 32 regulated the respondents’ pension plans. The Pension Benefits Act, 1992 , S.S. 1992, c.

P-6.001 , a provincial statute, did not apply. [ 6 ] The federal Pension Benefits Standards Act, 1985 applies to the pension plans of employees in “included employment” . “Included employment” is “employment … on or in connection with the operation of any work, undertaking or business that is within the legislative authority of the Parliament of Canada” : Pension Benefits Standards Act, 1985 , subsection 4(4) . The “legislative authority of the Parliament of Canada” is determined by examining sections 91–95 of the Constitution Act, 1867 (in

Part VI, “Distribution of Legislative Powers” ) and any controlling authorities interpreting those sections. If the undertaking in which the employees work is within the legislative authority of the Parliament of Canada, the federal Pension Benefits Standards Act, 1985 applies. The nature of the Superintendent’s decision [ 7 ] When determining an application for judicial review in complicated cases, a reviewing court should identify with precision the true nature of the administrative decision being reviewed: Delios v.

Canada (Attorney General) , 2015 FCA 117 , 472 N.R. 171 , at paragraphs 18 and 26–28 ; Canada (Attorney General) v. Boogaard , 2015 FCA 150 , 474 N.R. 121 , at paragraph 36 ; Canada (Citizenship and Immigration) v. Singh , 2016 FCA 300 , [2017] 3 F.C.R. 263 , at paragraph 8 . [ 8 ] Here, the Superintendent was acting under subsection 4(4) of the federal Pension Benefits Standards Act, 1985 . But the Superintendent did not have to interpret that subsection: it is perfectly clear. And no one has alleged that the Superintendent misinterpreted it.

The real dispute in the Federal Court and this Court is how the Superintendent went about applying the subsection. [ 9 ] In applying the subsection, the Superintendent had to assess whether the respondents’ undertakings were within the legislative authority of the Parliament of Canada.

In this particular case, the assessment involved three separate steps: (1) interpreting the constitutional jurisprudence concerning the legislative authority of the Parliament of Canada, (2) making findings of fact about the nature of the respondents’ undertakings, and (3) applying the constitutional jurisprudence to the findings of fact. [ 10 ] The respondents do not take issue with the Superintendent’s findings of fact. The real issue they raise is whether the Superintendent properly interpreted and applied the constitutional jurisprudence concerning the legislative authority of the Parliament of Canada.

Within that broad issue lies a more particular issue: do the Treaties affect the constitutional analysis? The standard of review [ 11 ] We are to assess whether the Federal Court adopted the proper standard of review—in other words, conduct the analysis ourselves—and then assess whether the Federal Court applied the proper standard of review correctly: Agraira v.

Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 , at paragraphs 45–47 . [ 12 ] This Court has regularly conducted correctness review of administrative decisions regarding whether labour relations and closely associated matters are regulated federally or provincially under the Constitution Act, 1867 : Syndicat des agents de sécurité Garda,

Section CPI-CSN v. Garda Canada Security Corporation , 2011 FCA 302 , 430 N.R. 84 , at paragraph 29 ; Nishnawbe-Aski Police Service Board v. Public Service Alliance of Canada , 2015 FCA 211 , [2016] 2 F.C.R. 351 , at paragraph 6 ; Telecon Inc. v. International Brotherhood of Electrical Workers, Local Union No. 213 , 2019 FCA 244 , 439 D.L.R. (4th) 558, at paragraph 16 . This past jurisprudence suggests that the standard of review for the issues on which this case turns (identified in paragraph 10, above) is correctness. [ 13 ] But now we are to start with Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , 59 Admin. L.R. (6th) 1 , not our earlier jurisprudence: see Vavilov , at paragraphs 129–132 . Vavilov tells us that “constitutional questions” or “constitutional matters” are reviewable on a standard of correctness: Vavilov , at paragraphs 53 and 55 . The issues on which this case turns fall into the category of “constitutional questions” . Thus, the standard of review is correctness.

The parties’ positions [ 14 ] For the purposes of this case, the Attorney General accepts that the federal Crown is obligated under the Treaties to provide health care to the relevant Indigenous peoples. [ 15 ] For the purposes of this case, the parties also accept that the federal Crown is discharging its responsibility by funding the respondents in accordance with certain agreements. [ 16 ] In this case, the parties agree that the provision of health care is a provincial matter.

But the respondents point to the fact that the Crown is obligated by the Treaties to ensure health care is provided to Indigenous peoples. In their view, this transforms the situation, rendering the respondents’ undertakings federal because they fall within the federal legislative authority concerning Indigenous peoples and First Nations: Constitution Act, 1867 , subsection 91(24) . The Attorney General disagrees, citing the Supreme Court’s decision in NIL/TU,O .

Analysis [ 17 ] The respondents’ submission is basically the same as that advanced by the unsuccessful parties in the Supreme Court’s decision in NIL/TU,O . The Supreme Court rejected this submission. In this case, the Superintendent was right to reject it too. [ 18 ] The Superintendent correctly identified NIL/TU,O as the controlling authority. This Court has applied NIL/TU,O in three cases: Telecon , Nishnawbe-Aski and Innu Matimekush-Lac John Nation Council v. Association of Employees of Northern Quebec (CSQ) , 2017 FCA 212 .

As will be discussed below, the reasoning in these cases suggests that the pension plans of the respondents are provincially regulated. The respondents have not submitted that these cases are manifestly wrong or should not be followed. Nor do they disagree with the reasoning in them.

[19] In NIL/TU,O, the Supreme Court considered whether the labour relations of an agency providing child welfare services to thechildren and families of seven First Nations were federally regulated or provincially regulated.

The Supreme Court concluded that theywere provincially regulated. [20] It reached that conclusion by applying a double-barrelled legal test: … in determining whether an entity’s labour relations will be federally regulated, thereby displacing the operative presumption ofprovincial jurisdiction, … a court [must] first apply the functional test, that is, examine the nature, operations and habitual activities ofthe entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated.

Only if this inquiry is inconclusiveshould a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of thefederal head of power at issue. (NIL/TU,O, at paragraph 18; see also Northern Telecom v.

Communications Workers, (SCC), [1980] 1 S.C.R. 115, 98D.L.R. (3d) 1.) [21] Under the first branch of the NIL/TU,O test, the functional examination of “the nature of the operation” requires us to look at“the normal or habitual activities of the business” as “a going concern” and “without regard for exceptional or casual factors”: NorthernTelecom, at page 132, cited in NIL/TU,O, at paragraph 14; see also Construction Montcalm Inc. v. Min. Wage Com., (SCC), [1979] 1 S.C.R. 754. at page 769, 93 D.L.R. (3d) 641. [22] In NIL/TU,O the Supreme Court did not proceed beyond the first branch of the legal test.

It found that the function of the agencywas to provide welfare services to children and families, a provincially regulated activity. The Supreme Court acknowledged that theagency provided its welfare services to Indigenous peoples, sensitively tailoring its programs to them. But that counted for naught. TheSupreme Court did not need to consider the second branch of the NIL/TU,O test. [23] In the case at bar, the respondents submit that their functions have a distinct and substantial Indigenous component that affectsthe analysis under the first branch. This was the very submission rejected in NIL/TU,O.

There, NIL/TU,O argued, based on the recordfiled with the Court, that the “distinctly Aboriginal component of its service delivery methodology alters the nature of its operations andactivities such that it is a federal undertaking” for labour relations purposes: NIL/TU,O, at paragraph 37.

The Supreme Court acceptedthat the record established “the cultural identity of NIL/TU,O’s clients and employees” and “its mandate to provide culturally-appropriate services to Aboriginal clients” but “[n]either…displaces the operating presumption that labour relations are provinciallyregulated”: NIL/TU,O, at paragraph 39. [24] This Court’s decision in Nishnawbe-Aski, like NIL/TU,O, is strong authority for the proposition that an undertaking, usuallyprovincially regulated, does not become federally regulated just because it is tailored sensitively to serve the needs of a local Indigenouspopulation.

The undertaking in Nishnawbe-Aski, a police services board, was very much comprised of Indigenous people, took somedirection from the local Indigenous community and played a very significant role in it, yet functionally it remained a police servicesundertaking regulated by the province. [25] Even if the respondents’ view of the law were correct, their submission fails for another reason: the Superintendent failed to finda substantial Indigenous component in the respondents’ functions. We must defer to this factual assessment.

Perhaps recognizing theinadequacy of the evidentiary record on this point, counsel for the respondents attempted to offer us new evidence in the course of hisoral submissions. But, of course, this is not normally permitted: see, e.g., Association of Universities and Colleges of Canada v.Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297 and Bernard v. Canada (Revenue Agency), 2015FCA 263, 479 N.R. 189 (fresh evidence adduced in the reviewing court); see also Butterfield v.

Canada (Attorney General), 2005 FC396, 280 F.T.R. 101 (counsel giving evidence). [26] In this case, the Superintendent focused on the question of “legislative authority” under subsection 4(4) of the federal PensionBenefits Standards Act, 1985, identified NIL/TU,O as the controlling authority, applied that authority, and concluded that therespondents’ undertakings were functionally health care undertakings. The Superintendent based this conclusion on facts that areundisputed and explained it to the respondents in two decision letters: see appeal book, at pages 470 and 2221.

From there, theSuperintendent’s analysis was purely legal and led to the conclusion that the respondents’ undertakings were under the legislativeauthority of the province. [27] The Superintendent was correct. The legislative authority to regulate health care undertakings lies with the province: Canada(Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at paragraphs 66–68; Eldridge v.

BritishColumbia (Attorney General), (SCC), [1997] 3 S.C.R. 624, (1997), 151 D.L.R. (4th) 577, at paragraph 24; Chaoulli v.Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at paragraphs 18 and 23. And the labour relations of employees inprovincial undertakings, including their pensions, are presumptively subject to provincial regulation: Tessier Ltée v.

Quebec(Commission de la santé et de la sécurité du travail), 2012 SCC 23, [2012] 2 S.C.R. 3, at paragraph 11; Consolidated Fastfrate Inc. v.Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, at paragraphs 27–30; NIL/TU,O, at paragraph 11. On theundisputed facts, the respondents’ undertakings are under the legislative authority of the province. [28] In its analysis, the Federal Court went astray.

Rather than focusing on which level of government has the legislative authority toregulate the respondents’ undertakings and rather than strictly following the controlling authority of NIL/TU,O, the Federal Courtconcentrated on the terms of the Treaties, the importance and solemnity of the Treaties, and

section 35 of the Constitution Act, 1982,which recognizes and affirms treaty rights. By doing that, the Federal Court diverted itself from the task NIL/TU,O required it to do—toengage in a functional examination of the nature, operations and habitual activities of the respondents’ undertakings as going concernswithout regard for exceptional or casual factors. This was an error of law. [29] The content of the Treaties and

section 35 of the Constitution Act, 1982 are not controversial in this case. All parties accept forthe purposes of this case that the federal government can discharge its obligation under the Treaties by providing funding for Indigenoushealth care. However, the provision of federal funding by itself does not convert an otherwise provincial undertaking into a federal one:Reference Re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, at page 567, (1991), 83 D.L.R. (4th) 297;

Chaoulli, at paragraph 16. The Treaties simply do not have the legal relevance or materiality that the Federal Court attached to them inthis case. [30] The Treaties and the rights in them did not change the question that the Superintendent had to answer under subsection 4(4) ofthe Pension Benefits Standards Act, 1985: who has the “legislative authority” to regulate these undertakings? The answer to that questionis found only in the assignment and distribution of exclusive legislative authority in sections 91 to 95 of the Constitution Act, 1867, asinterpreted in this context by the Supreme Court in NIL/TU,O. [31] Without doubt,

section 35 of the Constitution Act, 1982 recognizes and affirms treaty rights and, thus, is an important part of theConstitution of Canada, the supreme law within the territory of Canada. So treaty rights are important. Also without doubt,

section 35 canlimit the legislative power of the federal Parliament and the provincial Legislatures: R. v. Sparrow, (SCC), [1990] 1S.C.R. 1075, (1990), 70 D.L.R. (4th) 385. But, as the Supreme Court has unanimously held,

section 35 of the Constitution Act, 1982 doesnot somehow displace or amend the grant and distribution of exclusive legislative power between the federal Parliament and theprovincial Legislatures under sections 91 to 95 of the Constitution Act, 1867: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44,[2014] 2 S.C.R. 257, at paragraphs 135–142; see also Siksika Health Services v. Health Sciences Association of Alberta, 2019 ABCA494, 99 Alta. L.R. (6th) 73, at paragraph 30.

This is just one facet of a more fundamental, bedrock principle in our Constitution: one partof the Constitution cannot displace or amend another part of the Constitution: Paul v. British Columbia (Forest Appeals Commission),2003 SCC 55, [2003] 2 S.C.R. 585, at paragraph 24; Adler v. Ontario, (SCC), [1996] 3 S.C.R. 609, (1996), 140 D.L.R.(4th) 385; Gosselin (Tutor of) v.

Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238, at paragraph 14; and many others.When the task is to decide who has legislative authority over a subject-matter, we must look to sections 91 to 95 of the Constitution Act,1867 and any controlling authorities concerning them— here, the Supreme Court’s decision in NIL/TU,O. [32] At a more granular level, the Treaties obligate the federal government to ensure that health care is provided to the relevantIndigenous peoples. The parties agree for the purposes of this case that this obligation can be discharged by the federal governmentproviding funding.

But an obligation to provide funding to an undertaking has nothing to do with its function, which is the primary focusof the first branch of the test in NIL/TU,O. In this case, the undertakings’ functions remain the provision of health care, which isprovincially regulated, as are the respondents’ pension plans. [33] As the first branch of the NIL/TU,O test is determinative of the question before us, there is no need to consider the second branchof that test. [34] It follows that the Superintendent was correct in deciding that the respondents’ pension plans were provincially regulated.

TheFederal Court should not have quashed the Superintendent’s decisions. [35] For good measure, the Superintendent’s reasons for the decisions are a model of clear, brief and economical expression and offermore than enough justification. Postscript [36] The original appellants in this appeal were the Attorney General and the Minister of Finance. This was because they were theunsuccessful respondents to the application for judicial review in the Federal Court. [37] In a direction issued before the hearing of this appeal, the Court raised the question whether this was proper.

At the hearing, theparties agreed that it was not. They are correct. Under rule 303 of the Federal Courts Rules, SOR/98-106 the Attorney General was theonly proper respondent in the Federal Court. Thus, the Attorney General is the only proper appellant in this Court. [38] While the incorrect inclusion of the Minister of Finance in this case caused no problem, sometimes it can. A party, once named,might start to participate when, in fact, the party has no right to do so.

Whenever a party is incorrectly named, parties should register anobjection or the Registry should act under rule 72 at an early stage in the proceedings. Proposed disposition [39] I would amend the style of cause, removing the Minister of Finance as an appellant. I would make both the style of cause on thisdocument and the judgment reflect the amendment. [40] I would allow the appeal, set aside the judgment dated November 28, 2018 of the Federal Court in file T-1315-17, and dismissthe respondents’ application for judicial review. The parties agree that all should bear their own costs.

Thus, I would make no order as tocosts. de Montigny J.A.: I agree. Laskin J.A.: I agree.